Hi Giuseppina. I feel your frustration.
In the meantime, I'm afraid I have to agree with JJ and Ariadne. Tracing it through the conclusion is as follows:
s.74(1) SSAA 92: Where a payment by way of a prescribed income is (paid late, etc)...
prescribed income is defined by reference reg 7(1)(a) SS (PAOR) Regs 1988: for the purposes of s.74(1) of (the act)..., income required to be taken into account (is that in) part V of the income support regulations (IS regs 40-42)
Reg 40 IS regs: (from the first paragraph in the annotation to the reg: "this paragraph mainly confirms that all forms of income other than earnings falls into this category, and provides that the gross amount is to be taken into account. Reg 40(2) applies the disregards in schedule 9 and includes HB (para 5), non-dependant contributions (para 19) - see JJ's post - and 'lodgers' disregard of £20 plus £50% of the balance (para 20).
Reg 41 deals with income from capital and reg 42 deals with notional income. This would apply in resepct of s.74(1) where, for example, the IS award is later revised after it was discovered that that claimant had deprived himself. The resulting 'notional income' would be taken into account to create the overpayment under s.74(1) if it was applied retrospectively.
All things considered therefore, although I confess I've no memory of dealing with s.74 cases, I would have to say your client's case seems somewhat unwinnable on the facts you've presented. Even if the DWP make a hash of things, the tribunal can - and should - give the decision the DM should have given.
A couple of things that I would want to be looking out for though...
1) that the 'lodger' was not a 'non-dependant' 2) that the disregards have been properly applied 3) that there has been no change to the definition of 'prescribed income' since the overpayment occurred (I'm using the current legislation volumes) 4) the the overpayment recoverable under s.74 only extends up to the late payment was made. Thereafter, I would suggest that any continuing overpayment ought to dealt with under s.71
For fullness, late payments of 'prescribed benefits' as opposed to 'prescribed income' are dealt with under s.74(2) and reg 8 PAOR regs.
Finally, and in respect of the SoS comments, I would want to see the context in which these were made. It's also worth bearing in mind that the annotation to the section says that the provision largely mirrors its predecessor in the supplementary benefit act 1976, from which it was taken.
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